Antitrust Prosecutions for ‘No-Poaching’ Agreement

Stuart Berman

Since the early 1990s, criminal investigations and prosecutions by the Department of Justice’s Antitrust Division have focused on massive price-fixing cartels, resulting in billions of dollars in corporate fines and many years of prison time for top-level executives.

The cartels involved industries such as air and sea cargo, vitamins, dynamic random-access memory computer chips, liquid crystal display computer monitors, and most recently a wide array of automobile parts. The defendants were often multinational corporations such as Samsung, Air France/KLM, F. Hoffman-LaRoche, and Mitsubishi Electric. Antitrust prosecutions seemed to be light years away from the day-to-day business practices of small and mid-sized businesses in the DMV region.

Think again. For many decades, the Antitrust Division has criminally prosecuted per se violations of the Sherman Act. Conduct such as bid-rigging, price-fixing, and market allocation is presumed to result in unreasonable restraint of trade. Most prosecutions involve concerted action to increase prices, but the government has also prosecuted concerted action to decrease bids in manner that cheats sellers, such as in auctions of foreclosed real estate. Until recently, however, the Antitrust Division did not bring criminal prosecutions involving recruitment and hiring matters that are generally presumed to involve employment law, not antitrust.

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Seven Things That Employers Need to Know About Virginia’s New Overtime Wage Act

Virginia recently amended its wage law in a very significant manner by enacting the Overtime Wage Act (Act). The Act took effect on July 1, 2021.

Key takeaways from the amendment include the following:

  1. The Act has changed the manner in which the regular rate of pay is calculated for salaried, non exempt employees. Under Section 40.1-29.2(B)(2) of the Virginia Code, the regular rate of pay for salaried, non exempt is now one fortieth (1/40th) of all wages paid in a particular workweek.
  2. Consequences of the change in the calculation of the regular rate for salaried, non exempt employees. The practical effect of this change is that the so-called Fluctuating Work Week (FWW) method, which exists under the (federal) Fair Labor Standards Act (FLSA), whereby an employer may calculate overtime at one half of the regular rate (as opposed to time and a half as otherwise required under the FLSA), is not legal in Virginia.
  3. The Act permits employees to bring collective actions. Employees may bring overtime claims individually, as well as also jointly with other aggrieved employees, or on or behalf of similarly situated employees as a collective action consistent with the collective action procedures of the FLSA.

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